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2004
International Application of the UCCJEA:
Scruntinizing the Escape Clause
Marianne Blair
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38 Fam. L. Q. 547 (2004) .
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International Application of the UCCJEA:
Scrutinizing the Escape Clause
D. MARIANNE BLAIR*
I. Introduction
Should a custody decree from Qatar be entitled to the same treatment
by United States courts as a custody decree from Kansas? Should
"extended home state status" confer prioritized jurisdiction on the courts
of Somalia to the same extent that such status would give priority to the
courts of South Dakota? These are the questions that faced the drafters of
the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
when they debated the language of Section 105, which regulates the international application of the Act. These same questions now confront the
courts that must apply that Act in international custody disputes.
In most situations, Section 105 would answer these questions in the
affirmative. Whether making determinations regarding their own authority
to exercise jurisdiction or deciding issues of recognition and enforcement,
in the vast majority of cases U.S. courts are directed by Section 105 to treat
all foreign nations as sister states when applying the UCCJEA's stringent
standards. This approach promotes predictability and comity concerns,
and in most cases in which it has been applied thus far, it has worked well.
Strict standards reduce the incidence of child-snatching and international
* Professor of Law, University of Tulsa College of Law. Many of the ideas in this article
were first presented at the Regional Conference of the International Society of Family Law in
Eugene, Oregon, on June 27, 2003. I am grateful to Donald Lewis, Merritt Klapperich, and
Patricia Curtis, who assisted me with their skillful research. I also wish to thank Professor
Robert Spector, who has on many occasions generously shared with me his own insights on the
drafting and application of the UCCJEA, Professor Ann Estin for her helpful comments on the
ISFL presentation, Professor Barbara Stark, who encouraged me to participate in this symposium issue, and Professor Merle Weiner, whose personal scholarship as well as her collaboration with me on multiple projects over the past several years have contributed enormously to
my own thinking about international family law.
548
Family Law Quarterly, Volume 38, Number 3, Fall 2004
forum shopping, and foster stability for children caught in the strife of a
transnational custody dispute. Moreover, affording foreign orders the same
treatment guaranteed to domestic orders enhances the likelihood of reciprocal recognition and enforcement of U.S. orders by foreign courts, promotes
respect for foreign cultures, and reduces the opportunity for ethnocentrism
in our courts.
The drafters of Section 105 recognized, however, that there might be
circumstances under which equivalent treatment would not be warranted.
The Section therefore contains an escape clause, providing that the Act
need not be applied if the "child custody law of the foreign country violates fundamental principles of human rights." This article suggests that
courts must not be overly restrictive in their interpretation of this "escape
clause," because the absence of any viable ground for exception could
have troubling consequences in cases involving domestic violence and
child abuse. U.S. courts contemplating a deferral of jurisdiction to a foreign court or enforcement of a foreign order must not be deprived of the
flexibility necessary to protect the human rights of victims of domestic
violence and child abuse, nor should judges attempting to protect such victims be forced to misapply the jurisdictional standards to achieve that end,
thereby creating precedent that undermines the uniformity necessary for
domestic application of the UCCJEA. Moreover, the UCCJEA was drafted
to complement the Convention on the Civil Aspects of International Child
Abduction (Hague Abduction Convention),' and must be interpreted in a
manner that does not circumvent the protections afforded in that treaty.
Part Two of this article will survey the various sources of law in U.S.
courts that impact choice of forum, recognition, and enforcement in international custody disputes. This section begins with a brief explanation of
the Hague Abduction Convention, for readers unfamiliar with the history and
structure of this important treaty, and explains the separate roles played by
the Convention and U.S. jurisdictional statutes in transnational custody
actions in U.S. courts. Part Two next explores the application of the common law doctrine of comity and the Uniform Child Custody Jurisdiction
Act (UCCJA), predecessor to the UCCJEA, in international custody proceedings. This overview provides important insight regarding the legal
backdrop confronting the drafters of the UCCJEA, but also provides additional foundation for the arguments in Part Four favoring an interpretation
of Section 105 that can provide flexibility in compelling circumstances.
Part Two concludes with a brief examination of the history of the UCCJEA and its current legislative status.
1. Oct. 25, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 89, Hague Conf. Priv. Int'l L. Collection of Conventions (1951-1996) at 265.
Scrutinizing the Escape Clause 549
Part Three will focus specifically on UCCJEA Section 105, which controls the international application of the Act. Following examination of
the language and legislative history of Section 105, Part Three presents
three aspects of the provision that could be interpreted expansively or
restrictively.
Part Four explores the arguments for expansive interpretation of the
"escape clause," in those circumstances when to do otherwise would create
a credible risk of harm to a parent or child involved in the dispute or violate
other important fundamental rights of the child or a disputant. In addition
to discussing recent cases that suggest contexts in which such an interpretation might be necessary, Part Four will examine scenarios in which the
UCCJEA could otherwise undermine defenses in the Hague Abduction
Convention, as well as provisions of that Convention that support a more
expansive interpretation in compelling circumstances.
II. The Legal Landscape for Transnational Custody
Disputes in U.S. Courts
The significance and complexity of Section 105 of the UCCJEA can
best be appreciated only after examining the broader scope of treaty obligations and domestic law that predated the development of the Act, and
influenced its formulation.
A. The Hague Abduction Convention:
What It Does and Does Not Do
The United States has been a party to the Convention on the Civil Aspects
of Child Abduction since 1988.2 Those who have not yet engaged in international practice might assume that this treaty alone resolves jurisdiction
and enforcement issues for most international custody disputes that find
their way into U.S. courts. Such is not the case. The primary function of the
Hague Abduction Convention is to provide a process through which a leftbehind parent or other legal custodian may seek the prompt return of a
child who has been wrongfully removed to or retained in another country.' Convention procedures can often facilitate a voluntary return of the
child, and also provide a process to secure an order of return from an
administrative or judicial tribunal in the country where the child is located.
In the United States, a proceeding seeking an order of return under the
2. The Hague Abduction Convention entered into force for the United States on July 1,
1988. Implementing legislation for the Convention is the International Child Abduction
Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (2002).
3. See Hague Abduction Convention, supra note 1, at art. 1.
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Family Law Quarterly, Volume 38, Number 3, Fall2004
Convention may be adjudicated in either a state or a federal court, in "the
place where the child is located at the time the petition is filed." 4
A petitioner seeking an order of return must establish that (1) the child
has been wrongfully removed from or retained outside of the country of
the child's habitual residence,5 (2) in breach of the petitioner's rights of
custody, and (3) the petitioner was exercising those rights at the time of
removal.6 The petitioner's rights of custody need not be created by a prior
order, but can also arise by operation of law in the child's country of
habitual residence, and would include the rights of parental authority and
obligation typically attributed to both parents in most countries prior to
the institution of any court or administrative custody proceedings. 7 Even if
the petitioner establishes the grounds for an order of return, the order may
still be denied if the respondent can prove any of the following defenses:
(1) the existence of a grave risk that return would expose the child to physical or
8
psychological harm or otherwise place the child in an intolerable situation;
(2) the child objects to return and is of sufficient age and maturity to appropri9
ately consider the objection;
(3) the petitioner was not actually exercising custody rights at the time of
removal or retention, 0or had consented or subsequently acquiesced to the
removal or retention;'
(4) more than a year has elapsed from the date of the wrongful removal or
retention until the commencement of the judicial proceeding seeking an
order of return, and the child is now settled in the new environment; I or
(5) the return would not be permitted by the fundamental principles of the
requested state relating to the protection of human rights and fundamental
freedoms (the Article 20 defense).12
4. ICARA, 42 U.S.C. § 11603(a) (2002). Petitions filed in state courts may, of course, be
removed to federal court, if the respondent files a timely notice of removal. See, e.g., Gonzalez
v. Gutierrez, 311 F.3d 942, 947 (9th Cir. 2002).
5. The "habitual residence" of a child is not determined with reference to the child's nationality, legal domicile, or a specific duration or time frame, but rather is regarded as a factual
determination of the place where the child is normally resident, apart from a temporary absence,
Silverman v. Silverman, 338 F.3d 886, 898 (8th Cir. 2003);
with a "settled purpose." See, e.g.,
Mozes v. Mozes, 239 F.3d 1067, 1070-74 (9th Cir. 2001). Because the child's residence is to
some extent dependent upon the parents' intent, determinations regarding a child's habitual residence can at times be complex when the parents do not share the same views regarding a
child's change of location. Id.
6. Hague Abduction Convention, supra note 1,at art. 3.
7. E.g., Whallon v. Lynn, 230 F.3d 450 (Ist Cir. 2000) (father of out-of-wedlock child had
rights of custody under Mexican doctrine of "patria potestas"); Friedrich v. Friedrich, 78 F.3d
1060 (6th Cir. 1996) (removal of child by mother from Germany, where the family had been
living, violated father's custody rights under German law giving both parents equal de jure custody of the child).
8. Hague Abduction Convention, supra note 1,at art. 13(b).
9. Id.at art. 13.
10. Id.at art. 13(a).
11. Id.at art. 12.
12. Id.at art. 20.
Scrutinizing the Escape Clause
551
In the United States, the grave risk of harm and Article 20 defenses must
13
be established by clear and convincing evidence.
It is certainly true that a successful application to a U.S. court seeking
a return order under the Hague Convention will often circumvent the need
for U.S. courts to determine related issues regarding jurisdiction and
enforcement under other domestic law, such as the UCCJEA, that might
otherwise arise. This is because Article 16 of the Hague Abduction
Convention prohibits a nation that has received notice of a wrongful
removal or retention from deciding the merits of a custody dispute until
such time as its courts have decided that the child is not required to be
returned under the Convention. When a child is returned to the child's
country of habitual residence following successful Convention proceedings, custody is typically litigated in that nation and issues of jurisdiction
or enforcement thereafter are not frequently contested in U.S. courts.
Nevertheless, many custody disputes in U.S. courts that implicate foreign courts or orders are not resolved in this manner. Most often this is
because the Hague Abduction Convention is not in effect between the
United States and the other nation involved in the particular custody dispute. As of June 2004, only seventy-four countries, fewer than half the
nations of the world, were parties to the Convention.' 4 Moreover, as of
June 2004, the Convention had only entered into force between the United
States and fifty-three of those nations.15 This is because contracting
nations to the Convention are not required to accept the accession of
nations that are not members of the Hague Conference,1 6 and the United
States has not yet accepted the accession of many nations that are currently parties to the Convention.
Even when custody proceedings do involve nations for which the Hague
Abduction Convention is in force with the United States, there are still
many situations in which U.S. courts must look to domestic law to deter13. ICARA, 42 U.S.C. § 11603(e) (2002).
14. See Hague Conference on Private International Law, Status Sheet Convention #28, at
http://www.hcch.net/e/status/abdshte.html for a list of parties to the Hague Abduction Convention
that is updated daily.
15. See U.S. Dep't of State, Hague Convention of 25 October, 1980, on the Civil Aspects of
International Child Abduction, Party Countries and Effective Dates with United States, at
http://www.travel.state.govlhague list.html, which is periodically updated.
16. The Hague Conference on Private International Law is an intergovernmental organization whose primary purpose is to negotiate and draft multilateral conventions in a variety of
fields. The Hague Abduction Convention is one of over thirty conventions drafted and adopted
under the auspices of the Hague Conference. The United States is one of over sixty nations that
are currently members of the Hague Conference. Article 38 of the Hague Abduction Convention
permits nations that are not members of the Hague Conference to become parties to the
Convention by accession. However, the accession is effective only between the acceding state
and other contracting states that have formally declared their acceptance of the accession.
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Family Law Quarterly, Volume 38, Number 3, Fall 2004
mine whether they have authority to issue an original or modified custody
or visitation order, or whether they must recognize and enforce an order
issued by the tribunals of another country. For example, following rejection of an application for a return order (because the country to which
return was requested was not the child's habitual residence, the removal
or retention was not wrongful, or one of the defenses was applicable),
either the same or a different U.S. court may thereafter need to determine
if it has jurisdiction to issue or modify a custody order, if it must defer to
proceedings pending in another nation, or if it must enforce another nation's
order.' 7 When a child has been removed from the United States, a leftbehind parent might ask a U.S. court for an initial or modified custody
order, while a Hague proceeding is pending in the nation to which the child
has been taken, after that nation refuses to return the child, or after the
child has been returned to the United States through a Hague proceeding."8
Sometimes a U.S. court is asked to adjudicate custody or enforce a foreign
order concerning a child who has been brought from another Hague nation
to the United States, when no Hague proceeding has been filed in the United
States, either because the removal was not contested or because the leftbehind parent did not seek a return order under the Convention. 19 In some
cases, U.S. courts have adjudicated a Convention application and issues of
jurisdiction or enforcement under domestic law simultaneously,2' or utilized
17. See, e.g., Gonzalez v. Gutierrez, No. D040063, 2003 WL 22236051 (Cal. Ct. App. Sept.
30, 2003) (UCCJEA action regarding enforcement and modification of visitation order following
unsuccessful Hague petition for return in federal court); Appel v. Appel (In re C.A.M.A.), 103
Wash. App. 1032 (2000) (court may exercise jurisdiction under UCCJA following determination
that retention of child in Washington was not wrongful under the Hague Abduction Convention).
18. See, e.g., Stock v. Stock, 677 So. 2d 1341 (Fla. Dist. Ct. App. 1996) (finding that Florida
court must apply simultaneous proceedings rule after Swiss court denied father's Hague petition
and custody proceedings were pending in both nations); Arnold v. Harari, 772 N.Y.S.2d 727
(App. Div. 2004) (jurisdiction under UCCJEA deemed proper in proceeding filed after children
were voluntarily returned following a year's absence in Israel, considered to be "temporary" by
the court, and adjudicated after children were again returned from Israel in response to a Hague
petition); Johnson v. Johnson, 493 S.E.2d 668 (Va. Ct. App. 1997) (father sought modification
of Virginia decree after unsuccessfully pursuing Hague proceeding in Sweden).
19. See, e.g., J.T. v. A.C., 2004 WL 1125191 (Ala. Ct. App. May 21, 2004) (Alabama court
lacked jurisdiction under the UCCJEA to modify Canadian judgment, in proceeding filed by
Canadian father); Zenide v. Superior Ct., 27 Cal. Rptr. 2d 703 (Ct. App. 1994) (court must
decline to enforce Texas order under UCCJA, because Texas court had no jurisdiction to modify
French order); Atchison v. Atchison, 664 N.W.2d 249 (Mich. Ct. App. 2003) (Michigan court
had no jurisdiction under the UCCJEA to modify Canadian order, after child moved to
Michigan by agreement); Dincer v. Dincer, 701 A.2d 210 (Pa. 1998) (no initial jurisdiction
under the UCCJA because Belgium was the "home state").
20. In re Marriage of Jeffers, 992 P.2d 686 (Colo. Ct. App. 1999) (child was returned under
the Convention and Colorado court declined to exercise jurisdiction under the UCCJA); In re
Marriage of Henches, 103 Wash. App. 1019 (2000) (after both parents filed Convention applications and custody actions, court found father's removal wrongful, mother's removal not
Scrutinizing the Escape Clause
553
the UCCJEA in conjunction with affording relief under the Convention. 2
Thus, while the Hague Abduction Convention does provide an important remedy to left-behind parents in international disputes involving the
wrongful removal or retention of children, it has not displaced the need for
additional jurisdictional and enforcement regulation.22 Aside from the
narrow stay provisions of Article 16, the Hague Abduction Convention
does not even address issues of jurisdiction in transnational custody matters, and its enforcement remedies are incomplete.23 To fill this gap, two
conventions produced by the Hague Conference specifically address jurisdiction and enforcement of custody orders: the Convention of October 5,
1961 Concerning the Powers of Authorities and the Law Applicable in
24
Respect of the Protection of Minors (hereinafter the 1961 Convention)
and the 1996 Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation in Respect of Parental Responsibility and
Measures for the Protection of Children 25 (hereinafter the 1996 Hague
wrongful, ordered return of children to Switzerland, and held Washington court should defer to
Swiss court under the UCCJA).
21. See Morgan v. Morgan, 289 F.Supp.2d 1067 (N.D. Iowa 2003) (Pending resolution of a
Hague petition, a federal court granted temporary injunction forbidding removal of the child
from the court's jurisdiction, relying upon ICARA's provision in 42 U.S.C. § 11604 permitting
measures to prevent removal permitted by state law, and UCCJEA provisions permitting a court
to order a party to appear with a child before the court).
22. See Robert G. Spector, InternationalChild Custody Jurisdictionand the Uniform Child
Custody Jurisdictionand Enforcement Act, 33 N.Y.U. INT'L L. & POL'Y J. 251, 251(2000). See
also Galante v. Summerfield, No. A 100555, 2003 WL 22719322 (Cal. Ct. App. Nov. 14, 2003)
("Hague Convention has nothing to do with the merits of a custody dispute"); Edwards v.
Edwards, 563 S.E. 2d 888, 894 (Ga. Ct. App. 2002) (Hague Convention governs return of children and "does not purport to resolve custody conflicts").
23. The primary remedy under the Hague Abduction Convention, an order of return, will, if
awarded, ensure that the child is brought back to the child's country of habitual residence, but
it is then left to the courts of that nation to take any further enforcement steps that might be
needed to effectuate the terms of an existing custody decree. The Hague Abduction Convention
also contains provisions in Article 21 that require contracting nations to remove, as far as possible, all obstacles to the exercise of rights of access (visitation), but does not specifically
require that a return order be entered to enforce access rights. In the United States, federal courts
have determined that they do not have subject matter jurisdiction over claims brought under the
Convention seeking rights of access. See, e.g., Teijeiro Fernandez v. Yeager, 121 F.Supp.2d
1118 (W.D. Mich. 2000); Bromley v. Bromley, 30 F.Supp.2d 857 (E.D. Pa. 1998).
24. Oct. 5, 1961, 1969 U.N.T.S. 145. As of June 2004, fourteen nations were parties to this
convention. Hague Conference on Private International Law, Full Status Report Convention
#10, at http://www.hcch.net/e/status/statlOe.html. Although it has attracted new parties as
recently as 2001, the 1961 Convention has been criticized for its broad bases of jurisdiction and
exceptions to recognition. Dissatisfaction with this Convention motivated efforts to create a
revised jurisdiction and enforcement convention, which culminated in the drafting of the 1996
Convention. Linda Silberman, The 1996 Hague Convention on the Protection of Children:
Should the United States Join?,34 FAM. L.Q. 239, 243-44 (2000).
25. Oct. 19, 1996, 35 I.L.M. 1391, Hague Conf. Priv. Int'l L. Collection of Conventions
(1951-1996) at 357. As of June 2004, nine nations were parties to the 1996 Hague Protection
554
Family Law Quarterly, Volume 38, Number 3, Fall 2004
Protection Convention). The 1996 Hague Protection Convention was
designed to replace the earlier 1961 Convention, and to work in harmony
with the Hague Abduction Convention. The United States is not a party to
either the 1961 Convention or the 1996 Hague Protection Convention,
however. Therefore, U.S. courts must look to domestic law to resolve the
jurisdiction and enforcement issues that are not addressed by the Hague
Abduction Convention.
B. Comity and Its Public Policy Exception
For over a century, U.S. courts have recognized and enforced foreign
judgments under the common law doctrine of comity. Comity has been
described as "neither a matter of absolute obligation . . .nor of mere
courtesy and good will," but rather as "the recognition which one nation
allows within its territory to the legislative, executive or judicial acts of
another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are
under the protection of its laws."2 6 The doctrine of comity encompasses
not only the recognition and enforcement of foreign judgments, but is
also used as a basis to consider whether to proceed with litigation properly within the jurisdiction of U.S. courts, or to defer to a foreign tribunal in which litigation is pending or available. 27 U.S. courts have applied
proceedings. 28
the doctrine in both contexts in international custody
A long-recognized exception to the doctrine, however, is that comity
will not be afforded when it would be contrary to the strong public policy
of the forum. 29 Applying this exception in the context of custody proceedings, a Maryland intermediate appellate court in Malik v. Malik ° held
that under principles of comity, the court must enforce a Pakistani custody
order unless the Pakistani court (1) either did not apply the best interest of
the child standard, or (2) arrived at its decision applying a law (whether
substantive, evidentiary, or procedural) so contrary to Maryland public
policy as to undermine confidence in the outcome of the Pakistani trial.3"
Convention, which entered into force on January 1, 2002. Hague Conference of International
Law, Full Status Report Convention #34, at http:/www.hcch.net/e/status/ stat34e.html.
26. E.g., Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). See also RESTATEMENT (THIRD) OF
THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 481 (1987).
27. Diorinou v. Mezitis, 237 F.3d 133, 139-40 (2d Cir. 2001).
28. E.g., Hosain v. Malik, 671 A.2d 988 (Md. Ct. Spec. App. 1996) (enforcement of foreign
order); Ivaldi v. Ivaldi, 672 A.2d 1226 (N.J. Super. Ct. App. Div. 1996), rev'd 685 A.2d 1319
(N.J. 1996) (intermediate court deferred to foreign court on grounds of comity).
29. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 90 (1971) ("No action will be entertained on a foreign cause of action the enforcement of which is contrary to the strong public policy of the forum").
30. 638 A.2d 1184 (Md. Ct. Spec. App. 1994).
31. Id. at 1190-91.
Scrutinizing the Escape Clause 555
Relying upon Malik, a Washington intermediate appellate court in
Noordin v. Abdulla (In re Custody of R) 32 similarly concluded that even if
a foreign court had jurisdiction to enter a custody decree, the Washington
court could deny enforcement if it determined that the foreign proceedings
were conducted in a manner contrary to Washington state law and public
policy, which favored custody decisions based upon the "best interests of
the child." A decade earlier a Florida intermediate appellate court, in AlFassi v. Al-Fassi,33 also concluded that comity did not require recognition
of a Bahamian custody decree, finding the Bahamian decree offensive to
public policy because the Bahamian court had failed to consider several of
the factors that Florida courts are required by statute to consider in reaching a best-interest determination.34
Malik and Noordin could be read to suggest that even if a state's jurisdictional statute mandates enforcement of a foreign decree, the public policy
exception to the doctrine of comity would permit a state court to deny
enforcement. Neither case squarely so held.35 In fact, such a proposition
would be extremely questionable, as in most states, when there is a direct
conflict between a statute and common law, the statute controls. 36 AlFassi clearly does not support a conclusion that comity could trump a
statutory directive, for in that case the Florida court had first determined
32. 947 P.2d 745, 759-62 (Wash. Ct. App. 1997).
33. 433 So. 2d 664 (Fla. Dist. Ct. App. 1983).
34. Id. at 668. Specifically, the court found that the Bahamian court had not considered: "(1)
[the] length of time the children lived in a stable environment and the desirability of maintaining continuity; (2) education of the children; (3) psychological stability of the parents based on
competent evidence; and (4) physical health of the parents." In addition to determining that comity
did not require recognition, the court also determined that the UCCJA did not mandate recognition
of the Bahamian decree, and that the UCCJA permitted Florida to modify the decree because the
Bahamian court did not have subject matter jurisdiction or jurisdiction over the parties in accordance with UCCJA standards.
35. Though language in each case might suggest this proposition, the context in which the
exception arose does not support it. In Malik, the court did not explicitly treat the public policy
exception to the doctrine of comity as an exception to the enforcement requirements of the
UCCJA, because the court's discussion of the UCCJA appears to have misconstrued language
in § 8(b) to permit the court to deny enforcement in order to serve the child's interests. Malik,
638 A.2d at 1190-91. Moreover, on remand, the trial court in fact did enforce the Pakistani decree,
finding no strong public policy warranted denial of comity. That decision was subsequently
upheld in Hosain v. Malik, 671 A.2d 988 (Md. St. Spec. App. 1996). In Noordin as well the
court did not specifically find that, absent the public policy exception to comity, the UCCJA
would in fact mandate enforcement in that particular case. Instead, the court interpreted
Washington's version of its UCCJA to permit consideration of the foreign court's substantive
law. In addition, jurisdictional deficiencies in the foreign court that issued the order rendered the
validity of that particular order questionable on separate grounds. Noordin, 947 P.2d at 758-62.
36. E.g., McCabe Petroleum Corp. v. Easement & Right-of-Way Across Township, 87 P.3d
479,484 (Mont. 2004); Lavin v. Jordan, 16 S.W.3d 362, 369 (Tenn. 2000); Jenkins v. Percival,
962 P.2d 796, 802 (Utah 1998).
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Family Law Quarterly, Volume 38, Number 3, Fall 2004
that the UCCJA did not mandate recognition of the Bahamian decree, and
was then examining comity only in the context of whether that doctrine
would alternatively mandate recognition of the foreign decree. The ruling
of the New Jersey Supreme Court in Ivaldi v. Ivaldi,37 which examined the
use of comity in another context, lends further support to the notion that
comity cannot be used to circumvent a statutory provision. The higher
court explicitly concluded that the intermediate appellate court's decision
to defer the custody case to a Moroccan court was improperly based on
the doctrine of comity, and should instead have been decided under the
UCCJA's forum non conveniens provisions.38
Therefore, it seems doubtful that the common law doctrine of comity
can itself serve to function as an "escape clause" from the strictures of the
UCCJEA, when it is applied in transnational custody disputes in U.S. courts.
Nevertheless, it is relevant, as the construction of Section 105 of the UCCJEA is considered later in this article, to recall that the doctrine of comity,
applied generally by U.S. courts for over a century as the basis for recognition of foreign judgments, incorporates an exception permitting denial of
enforcement for reasons of strong public policy, and that some courts have
deemed consideration of this exception to be appropriate in the context of
custody proceedings.
C. InternationalApplication of the Uniform Child
Custody JurisdictionAct
The Uniform Child Custody Jurisdiction Act, adopted by the National
Conference of Commissioners on Uniform State Laws (NCCUSL) in
1968, was the first successful attempt in the United States to create uniform
state statutes governing jurisdiction and enforcement in both interstate
and international custody disputes. The Act limits the bases that may be
used by state courts to exercise initial and modification jurisdiction,
resolves conflicts in the event of simultaneous proceedings, codifies
forum non conveniens, restricts modification of orders from other states
and nations, and provides for recognition and enforcement of domestic
37. 685 A.2d 1319 (N.J. 1996).
38. Id. at 1326. It should be noted that there is also language in Ivaldi that might support a
contrary view. Ivaldi focused on whether a New Jersey trial court should exercise jurisdiction
over an initial custody proceeding or defer to a court in Morocco in which a pending action had
been previously filed. In dicta, the New Jersey Supreme Court noted, without elaboration, that
at a later time a New Jersey court could refuse to enforce the Moroccan decree if it determined
that the Shari'a court did not apply the best interests test. The court did not link that discussion
to a discussion of comity as a separate doctrine, however, and relied in support for this statement upon an earlier case, Ali v. Ali, 652 A.2d 253 (N.J. Super. Ct. Ch. Div. 1994) discussed
infra, in which the UCCJA and comity were merged together in the same analysis, rather than
being treated distinctly. Ivaldi, 658 A.2d at 1327.
Scrutinizing the Escape Clause
557
and foreign custody orders. Although for many years the UCCJA was in
force in every U.S. state, it has now been widely superseded by the UCCJEA, and by June 2004, was in effect in only fourteen states.39
Application of the UCCJA in transnational custody disputes has been
somewhat problematic. Section 23 of the Act, which governs its international application, provides:
The general policies of this act extend to the international arena. The provisions
of this act relating to the recognition and enforcement of custody decrees of
other states apply to custody decrees and decrees involving legal institutions
similar in nature to custody institutions rendered by appropriate authorities of
other nations, if reasonable
notice and opportunity to be heard were given to all
4
affected persons. 0
Although many courts have applied the UCCJA in a straightforward
manner in international custody disputes,41 some courts have read Section
23 to require only enforcement of foreign custody orders and have refused
42
to treat foreign nations as states for purposes of determining jurisdiction.
Four states, Missouri, New Mexico, Ohio, and South Dakota, omitted
Section 23 altogether when they enacted the UCCJA.43
In several cases, state courts have interpreted the UCCJA to permit
them to deny enforcement to foreign orders if the foreign court did not
consider or apply the "best interests of the child" standard. In Tataragasi
v. Tataragasi4 a trial court took emergency jurisdiction in a custody proceeding filed by an American mother who brought her two children back
to the United States from Turkey, following years of beatings and abuse
by the father toward the mother and the female child. The North Carolina
39. National Conference of Commissioners on Uniform State Laws, A Few Facts About the
Uniform Child Custody Jurisdiction and Enforcement Act, at http://www.nccusl.org/nccusl/
uniformactfactsheets/uniformacts-fs-uccjea.asp.
40. UNIF. CHILD CUSTODY JURISDIcnON Acr § 23, 9 Part IA U.L.A. 639 (1999).
41. E.g., Zenide v. Superior Ct., 27 Cal. Rptr. 2d 703 (Ct. App. 1994) (modification); Turner
v. Frowein, 752 A.2d 955 (Conn. 2000) (Dutch temporary order not entitled to recognition
because it was rendered inoperative when Dutch divorce proceeding was withdrawn); Stock v.
Stock, 677 So. 2d 1341 (Fla. Ct. App. 1996) (simultaneous proceedings); Edwards v. Edwards,
563 S.E. 2d 888, 894 (Ga. Ct. App. 2002) (enforcement required); Klont v. Klont, 342 N.W.2d
549 (Mich. Ct. App. 1984) (simultaneous proceedings and enforcement); Maqsudi v. Maqsudi,
830 A.2d 929 (N.J. Super. Ct. 2002) (enforcement denied due to lack of notice); Dincer v.
Dincer, 701 A.2d 210 (Pa. 1998) (initial jurisdiction).
42. See Goldstein v. Goldstein, 494 S.E.2d 745 (Ga. Ct. App. 1998); McDaniel v. McDaniel,
693 N.Y.S.2d 778 (Ct. App. 1999); Ivaldi v. Ivaldi, 672 A.2d 1226 (N.J. 1996), rev'd on this
ground, 685 A.2d 1319 (1996); In re Marriage of Medill, 40 P.3d 1087, 1092 (Or. Ct. App.
2002). Cf. Koons v. Koons, 615 N.Y.S.2d 852 (Sup. Ct. 1994) (foreign nation not a state for
purposes of forum non conveniens and simultaneous proceedings provisions of UCCJA);
Horiba v. Horiba, 950 P.2d 340 (Or. Ct. App. 1997) (same).
43. UCCJA, supra note 40 at 640 (1999).
44. 477 S.E.2d 239 (N.C. Ct. App. 1996), rev. denied, 485 S.E.2d 309 (N.C. 1997).
558
Family Law Quarterly, Volume 38, Number 3, Fall 2004
intermediate appellate court affirmed the lower court's refusal to defer to
a pending Turkish proceeding, finding that the foreign court's exercise of
jurisdiction was not "in conformity" with the UCCJA because the Turkish
court's order did not discuss the best interests of the child, but instead
focused on "the defendant's position and status in the community, the
importance of Islam, circumcision and defendant's place in society. 4 5
Similarly, a Minnesota intermediate appellate court, in Abu-Dalbouh v.
Abu-Dalbouh,4 determined that the Minnesota court need not defer to a
Jordanian custody proceeding, even if it had been filed first in time (which
the court determined it had not), because the simultaneous proceedings
statute, UCCJA § 6, does not require deference to a court that is not exercising jurisdiction "in conformity with" the UCCJA. The mother and three
children had fled Jordan, with the help of the U.S. Embassy, following
numerous instances of both spousal and child abuse on the father's part,
and secretly relocated in Minnesota, where she filed custody proceedings
after residing for six-and-a-half months. With little description in the
opinion about what the Jordanian court had in fact done, the court determined that the Jordanian proceeding would not be entitled to deference
under the UCCJA because there was "no evidence the Jordanian court
considered the best interests of the child, thereby failing to conform to the
UCCJA." 47
Another example of this approach to the UCCJA is Ali v. Ali, 48 in which
a New Jersey trial court refused to recognize a custody order from a Shari'a
court in Gaza on several alternate grounds, one of which was the determination by the court that the Gaza decision was based on an irrebuttable
presumption that a father was automatically entitled to custody of a boy
over seven, and therefore incompatible with New Jersey's "best interests"
standard. Ali was subsequently cited approvingly in Ivaldi by the New
Jersey Supreme Court, which suggested that if a Moroccan court subsequently failed to consider the child's best interests, New Jersey could
refuse to enforce the Moroccan decree.49 More recently, the Louisiana
Supreme Court held in Amin v. Bakhaty5 0 that a U.S. court could determine
that Egypt should not be considered a state under the UCCJA, because to
do so under the facts and circumstances of the case would not be in the
best interests of the child.
45.
46.
47.
48.
49.
477 S.E. 2d at 246.
547 N.W.2d 700 (1996).
547 N.W.2d at 704-05.
652 A.2d 253 (N.J. Super. Ct. Ch. Div. 1994).
Ivaldi, 685 A.2d at 1327.
50. 798 So. 2d 75, 83-86 (La. 2001).
Scrutinizing the Escape Clause
559
In several other UCCJA opinions, courts expressed the view, explicitly
or implicitly, that they had the authority under the UCCJA to refuse
enforcement or otherwise disregard foreign custody orders if the court
determined that the foreign court had not applied a "best interests" standard.
In each of these cases, however, the courts did recognize the foreign order,
finding that the foreign tribunal had in fact considered the child's best
interests, in one case despite allegations of grandparent sexual abuse.5 2
While the results in some of the cases that circumvent UCCJA restrictions seem appropriate, the statutory interpretations these courts have
devised to achieve them are of questionable validity. The construction by
the courts in Tataragasi53 and Abu-Dalbouh54 of UCCJA's simultaneous
proceedings provision in Section 6, incorporating substantive law standards
as a basis to find that a foreign jurisdiction did not exercise jurisdiction
"substantially in conformity with" the UCCJA, is clearly inconsistent with
both the text and legislative history, which clarify that jurisdiction need
not be yielded to a court that does "not have jurisdiction under the criteria
of" the Act.55 Other cases 56 that adopt the "best interest" standard rationale
to avoid the nonmodification, recognition, and enforcement requirements
of the UCCJA have incorrectly relied upon the "best interest" language in
UCCJA's unclean hands provision in Section 8(b), another interpretation
that is inconsistent with the legislative history of the UCCJA 57 and has
since been rejected by other courts in a domestic context. 58 In Ali the court
appeared to rely upon a combination of the language in UCCJA Section 23
referring to "legal institutions similar in nature" and a failure to differentiate
51. In re Marriage of Malak, 227 Cal. Rptr. 841, 847-48 (Ct. App. 1986) (Lebanese decree
must be enforced, where record shows Lebanese Shari'a court did consider best interests of the
children); Malik v. Malik, 638 A.2d 1184, 1190 (Md. Ct. Spec. App. 1994) (UCCJA, as well as
comity, permitted court to consider if Pakistani court has applied the best interests standard);
Custody of a Minor (No. 3), 468 N.E.2d 251, 255 (Mass. 1984) (finding that foreign substantive and procedural law must be "reasonably comparable," and that an Australian order can be
enforced because the order encompassed the "best interest of the child" standard); Hovav v.
Hovav, 458 A.2d 972, 974-75 (Pa. Super. Ct. 1983) (Israeli decree must be enforced and not
modified, absent evidence of conditions physically or emotionally harmful to the children in the
custodial household).
52. Com. ex rel. Zaubi v. Zaubi, 423 A.2d 333, 342-46. (Pa. 1981).
53. 477 S.E.2d at 246.
54. 547 N.W.2d at 704-05.
55. UCCJA, § 23, cmt., 9 Part IA U.L.A. 475 (1999) (emphasis added).
56. See Malik, 638 A.2d at 1190; Com. ex rel. Zaubi v. Zaubi, 423 A.2d at 335-36. See also
Hovav, 458 A.2d at 974-75 (relying upon Zaubi); Malak, 227 Cal. Rptr. at 848 (relying upon
Horav).
57. See UCCJA, 8 cmt., supra note 40 at 527 (1999), which clarifies that Subsection (b) cannot even come into operation unless the court has the power to modify under UCCJA § 14.
58. See In re Custody of Ross, 630 P.2d 353 (Or. 1981), overruling In re Marriage of Settle,
556 P.2d 962, 967-73 (Or. 1976).
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Family Law Quarterly, Volume 38, Number 3, Fall 2004
between the doctrine of comity and the UCCJA to justify its incorporation
of substantive law. 59
Section 23, which governs the international application of the UCCJA,
contains no explicit "escape clause" that would permit courts to avoid the
requirements of the UCCJA in compelling circumstances. The absence of a
viable "escape clause" thus may have pressured the courts to fashion their
own "public policy" exception through "creative" statutory construction.
Though these interpretations of various UCCJA provisions are of questionable validity in terms of statutory construction, cases like Tataragasiand
Abu-Dalbouh illustrate the need for a viable escape clause, and the pressure
to misconstrue jurisdictional statutes when no viable escape clause exists.
D. The Uniform Child Custody Jurisdictionand Enforcement Act
In 1997, NCCUSL adopted a new act, the Uniform Child Custody
Jurisdiction and Enforcement Act, to replace the UCCJA. Similar in structure to its predecessor, the UCCJEA revised its jurisdictional standards to
conform to the Parental Kidnapping Prevention Act (PKPA), 60 a federal
full faith and credit statute enacted in 1980. The UCCJEA also added specific procedures for enforcement of custody orders, and provides clearer
standards for the assumption of initial and modification jurisdiction, in an
effort to eliminate inconsistencies in case law that had developed as the
UCCJA had been interpreted in fifty states.
The UCCJEA has already been enacted in over thirty-five states, and
legislation proposing its adoption is pending in several more.6" Within a
few years, the UCCJEA should govern the exercise of jurisdiction in
international custody actions and the recognition and enforcement of foreign orders in all or the vast majority of U.S. courts.
59. 652 A.2d at 258. Ivaldi appeared to rely upon Ali, 658 A.2d at 1327, and Amin relied
upon Ivaldi and Malak. 798 So. 2d at 84. This same construction of the phrase, "legal institutions similar in nature," was the basis for the Washington appellate court's conclusion in
Noordin, discussed supra at notes 32-35 and accompanying text, that the UCCJA permitted
consideration of a foreign court's substantive law as a basis for denying enforcement.
60. 28 U.S.C. § 1738A (2002). The PKPA establishes requirements for the exercise of custody jurisdiction which, if satisfied, entitle state custody orders to recognition and enforcement,
and restrict their modification, by other U.S. states as a matter of federal law. The PKPA does
not address jurisdictional conflicts between a state court and a foreign court, or the enforcement
of foreign orders.
61. As of June 2004, 39 states and the District of Columbia had enacted the UCCJEA, and
legislation was pending in eight additional states and the Virgin Islands. National Conference
of Commissioners on Uniform State Laws, A Few Facts About the Uniform Child Custody
Jurisdiction and Enforcement Act, at http://www.nccusl.org/nccusl/uniformact-factsheets/
uniformacts-fs-uccjea.asp.
Scrutinizing the Escape Clause
561
III. The Inscrutable "Escape Clause" of Section 105
Section 105, which addresses the international application of the UCCJEA,
rectifies many of the deficiencies and ambiguities of Section 23 of the
UCCJA. The text, which thus far has been incorporated without substantial change by all states enacting the UCCJEA,6 2 provides:
(a) A court of this State shall treat a foreign country as if it were a State of the
United States for the purpose of applying [Articles] 1 and 2.
(b) Except as otherwise provided in subsection (c), a child-custody determination made in a foreign country under factual circumstances in substantial
conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3.
(c) A court of this State need not apply this [Act] if the child custody law of a
63
foreign country violates fundamental principles of human rights.
Unlike UCCJA Section 23, Section 105(a) of the UCCJEA clearly
mandates that for purposes of determining both initial and modification
jurisdiction in custody matters, U.S. courts must treat a foreign nation as
if it were a U.S. state. Section 105(b) eliminates the phrase "legal institutions similar in nature" utilized in Section 23, and instead requires U.S.
courts to recognize and enforce child custody determinations made "under
factual circumstances in substantial conformity" with UCCJEA jurisdictional standards, thus precluding broad incorporation of substantive law
within the UCCJEA's enforcement mandate. Moreover, by its reference to
UCCJEA standards, Section 105(b) continues to incorporate the directive of
UCCJA Section 23 that the due process requirements of notice' and
opportunity to be heard65 are prerequisites to enforcement. In most of the
international cases in which the UCCJEA has been invoked to date, its
application has been straightforward and noncontroversial.66
62. UNIF. CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT § 105, 9 Part IA U.L.A. 75
(Supp. 2004-2005) [hereinafter UCCJEA] reports no states that have omitted Section 105, and
only six states-Arizona, Hawaii, Montana, Nevada, North Dakota, and Utah-that have made
changes to the official text. With one exception, these have been only minor grammatical
changes. The one exception is the deletion by Montana and Utah of the phrase in subsection (b),
"Except as otherwise provided in subsection (c)." As is discussed infra, this deletion should not
alter the intended application of the "escape clause." This Supplement was published in May
2004, and therefore does not reflect any changes that may be included in legislation enacted in
the 2004 legislative term or thereafter.
63. UCCJEA, § 105, Part IA U.L.A. at 662.
64. See In re Adoption of Christian A., No. B 165754, 2004 WL 729071 (Cal. Ct. App. April
6, 2004) (enforcement denied due to lack of notice).
65. UCCJEA § 106 provides that child custody determinations bind individuals who have
received notice and who have been given an opportunity to be heard. UCCJEA § 106, 9 Part 1A
U.L.A. at 663.
66. For application of the UCCJEA to initial determinations of jurisdiction in international
cases, see, e.g., Greenhough v. Goforth, 126 S.W.3d 345, (Ark. 2003); In re Marriage of Holder,
No. 257274, 2002 WL 443397 (Cal. Ct. App. March 20, 2002); Arnold v. Harari, 772 N.Y.S.2d
562
Family Law Quarterly, Volume 38, Number 3, Fall 2004
Requiring that the tribunals of every nation in the world be treated
identically to courts of sister states without exception, however, affords U.S.
courts no flexibility to take into account compelling differences in procedural or substantive standards for child custody determinations, or the radically different political, legal, or social environments in which those
standards might be applied in an international context. Recognizing the
need to permit deviation from the strictures of the UCCJEA's jurisdiction
and enforcement standards in some international disputes, UCCJEA Section
105, unlike the UCCJA, does contain an "escape clause." Subsection (c)
permits U.S. courts to refrain from applying UCCJEA standards in international custody matters if "the child custody law of a foreign country
violates fundamental principles of human rights."
The language of Section 105(c) presents several interpretive issues to
courts that must apply it. The first, and most easily resolved, concerns its
scope. More complex are determinations regarding the circumstances in
which it may justifiably be employed. What do "fundamental principles
of human rights" encompass, and how broadly may the term "child custody
law" be construed?
A. Scope of Section 105(c)
The construction of Section 105 could be construed to suggest that the
exception set forth in subsection (c) applies only to the recognition and
enforcement of foreign custody orders pursuant to Article 3. The argument
for such a construction would be that only Section 105(b), which addresses
recognition and enforcement under Article 3, contains the phrase, "Except
as provided in subsection (c). . . ." Section 105(a), which addresses the
application of Articles 1 and 2 to jurisdictional determinations by U.S.
courts in international disputes, contains no similar language. Were this
construction to be accepted, it could deprive U.S. courts of any means of
circumventing the provisions of Article 2 requiring deference to the jurisdiction of a foreign court that qualifies as the extended, or "left-behind
727 (App. Div. 2004); In re Calderon-Garza, 81 S.W.3d 899 (Tex. Ct. App. 2002); In re
McCoy, 52 S.W.3d 297 (Tex. App. 2001). Cf. Strout v. Campbell, 864 So. 2d 1275 (Fla. Ct.
App. 2004) (ICARA does not divest Florida court of jurisdiction when Germany refuses Hague
order of return and awards custody of abducted children to mother).
For application of the UCCJEA to modification proceedings in international cases, see, e.g.,
J.T. v. A.C., No. 2030297, 2004 WL 1125191 (Ala. Civ. App. May 21, 2004); Graham v.
Graham, No. FA9265185, 2002 WL 241493 (Conn. Super. Ct. Feb. 6, 2002); Atchison v.
Atchison, 664 N.W.2d 249 (Mich. Ct. App. 2003); Hector G. v. Josefina P., 771 N.Y.S.2d 316
(N.Y. Sup. Ct. 2003); In re Marriage of Medill, 40 P.3d 1087 (Or. Ct. App. 2002).
For cases in which the UCCJEA was used in proceedings to enforce foreign orders, see, e.g.,
Morgan v. Morgan, 289 F. Supp.2d 1067 (N.D. Iowa 2003) (temporary restraining order);
Galante v. Summerfield, No. A100555, 2003 WL 22719322 (Cal. Ct. App. Nov. 14, 2003).
Scrutinizing the Escape Clause
563
parent" home state, or that would have continuing, exclusive jurisdiction
under the UCCJEA, regardless of the compelling risk of harm to a child
or parent that might otherwise merit consideration. At least two states,
Montana and Utah, perhaps perceiving a risk of such an argument, have
deleted the phrase "Except as provided in subsection (c)" from their codification of Section 105.67
Fortunately, this narrow construction of the scope of Section 105(c) is
unwarranted. The language of Section 105(c) begins: "A court of this
State need not apply this [Act]," rather than "Article 3 of this Act," thus
indicating that 105(c) is, in fact, intended to apply to all applications of the
UCCJEA in international custody proceedings. Moreover, the Comment
of the drafting committee accompanying the Section, which discusses the
circumstances under which a court may refuse to apply the UCCJEA,
makes no reference to the clause at the beginning of Section 105(b), and
gives no indication that any such limitation on the application of subsection (c) was intended.68 In addition, Professor Robert Spector, who served
as Reporter for the Committee that prepared the Uniform Child Custody
Jurisdiction and Enforcement Act, confirmed his recollection that the
Committee intended subsection (c) to stand alone, and be an exception to
the Act's application. 69 The broader construction of the scope of the escape
clause is also the most logical, for if enforcement of a foreign order was
denied based on a violation of fundamental principles of human rights, it
would make no sense to then conclude that a U.S. court was precluded
from exercising jurisdiction over any aspect of the matter. Although no
reported cases have raised this issue, the conclusion that Section 105(c)
applies to the international application of the entire UCCJEA is clearly the
most appropriate interpretation.
B. Standards of Section 105(c)
Far more difficult to define are the circumstances under which Section
105(c) may be used to thwart application of UCCJEA standards in international cases. The official Comment to Section 105 suggests that the
basis for the exception, i.e., a violation of "fundamental principles of
human rights," is the "same concept found in Section 20 of the Hague
Convention on the Civil Aspects of International Child Abduction,"
which permits a return order to be denied if it "would not be permitted by
67. See supra note 62.
68. UCCJEA § 105 cmt., 9 Part 1A U.L.A. at 662
69. E-mail from Robert Spector, Glen R. Watson Centennial Chair and Professor of Law,
University of Oklahoma College of Law, to Marianne Blair, Professor of Law, University of
Tulsa College of Law (June 22, 2003) (on file with author).
564
Family Law Quarterly, Volume 38, Number 3, Fall2004
the fundamental principles of the requested State relating to the protection
of human rights and fundamental freedoms." The Comment observes that
the UCCJEA "takes no position on what laws relating to child custody
would violate fundamental freedoms, and goes on to suggest that this
traditional principle is "invoked only in the most egregious cases."70
Taken at face value, it would not be difficult to construct an argument that
the exception in Section 105(c) must be construed so narrowly as to render
it totally ineffective. The Comment's linkage between the exception and
Article 20 could easily be construed as a death knell. The Hague Abduction
Convention's Article 20 defense has been infrequently attempted in U.S.
courts, and on those rare occasions when it has been raised, with one possible exception, 7' it has been rejected.72 The U.S. Department of State, in its
1986 Legal Analysis of the Hague Abduction Convention, 73 and several
U.S. courts subsequently, have stated that Article 20 is to be "restrictively
applied.., on the rare occasion that return of a child would utterly shock
the conscience of the court or offend all notions of due process. 74 Outside
70. UCCJEA, § 105 cmt., supra note 68.
71. The Aldinger opinion suggests that Article 20 was recognized as a defense to the
issuance of a return order by the Supreme Court of Puerto Rico in de los Rios Carmosa v.
Melendez Rosa, RE-95-20,1996 WL 940333, 141 D.P.R. 282 (Puerto Rico 1996). Currently, no
official translation is available. Professor Merle Weiner has obtained an unofficial translation
of the opinion, and reports that two of the six judges who voted to deny an order of return to
Mexico officially grounded their opinions in Article 13(b), but that an Article 20 analysis
occurred sub rosa, based on the grave risk of harm faced by the child, as well as the mother,
from domestic violence. The decision is discussed at length in this issue, in Merle H. Weiner,
Using Article 20, 38 FAM. L.Q. 583, n. 145 (2004).
72. See Aldinger v. Segler, 263 F.Supp.2d 284, 290 (D. Puerto Rico 2003) (allegations of
violent behavior between parties did not include abuse of children and were not of sufficient
intensity); Mendez Lynch v. Mendez Lynch, 220 F.Supp.2d 1347, 1366 (M.D. Fla. 2002) (political and economic instability in Argentina insufficient); Hazbun Escaf v. Rodriquez, 200
F.Supp.2d 603, 614 (E.D. Va. 2002) (risk of abduction in Columbia minimal); Fabri v. PritikinFabri, 221 F.Supp.2d 859, 873 (N.D. Ill. 2001) (return order would not infringe mother's right
to travel or privacy rights in her family relationships with U.S. family members); March v.
Levine, 136 F.Supp.2d 831 (M.D. Tenn. 2000), aff'd 249 F.3d 462 (6th Cir. 2001) (death threats
to grandparents, threats to others, and suspicion of grandparents that father had murdered mother, absent evidence of harm to children, not sufficient basis); Freier v. Freier, 969 F. Supp. 436,
443-44 (E.D. Mich. 1996) (potential impact of return order on mother's or child's right to travel not sufficient); Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 851 (Ky. Ct. App. 1999)
(actions of Greek authorities in restraining departure of mother and child insufficient); Ciotola
v. Fiocca, 684 N.E.2d 763, 769-70 (Ohio C.P. 1997) (general argument that Hague Convention
violates child's rights to due process and equal protection not sufficient); Caro v. Sher, 687 A.2d
354, 358-62 (N.J. Super. Ct. Ch. Div. 1996) (delay in adjudicating mother's motion to leave
Spain not sufficient).
73. Dep't of State, Hague International Child Abduction Convention; Text and Legal
Analysis, 51 Fed. Reg. 10494, 10510 (March 26, 1986).
74. Aldinger v. Segler, 263 F.Supp.2d at 290; Hazbun Escaf v. Rodriquez, 200 F.Supp.2d at
614.
Scrutinizing the Escape Clause
565
of the United States as well, the Article 20 defense has been rarely utilized
and largely unsuccessful.
5
Application of Section 105(c) is further obstructed by the additional
restriction that the violation of fundamental principles of human rights
must be the product of the "child custody law" of the foreign country.
Does this mean that facially the law must violate fundamental principles
of human rights, or would if be sufficient if application of the law in a particular case or context would result in the violation of the fundamental
principles of human rights? The Comment's reflection on this issue also
reflects a somewhat conservative approach to application of Section 105(c),
stating that "the court's scrutiny should be on the child custody law of the
foreign country and not on the other aspects of the other legal system."
The commentary to Section 105(c) reflects the drafters' concern that the
provision not become the basis for magnifying every difference between
the U.S. legal system and that of a foreign nation to virtually stymie effective application of the UCCJEA in international cases. On the other hand,
the drafters' choice to include an escape clause, something that was not
explicitly included in the UCCJA, indicates their awareness that international cases would arise in which UCCJEA application would be inappropriate. To date, there has been little discussion in published cases
defining the parameters for application of Section 105(c). 76 In the only
75. NIGEL LowE, MARK EVERALL, & MICHAEL NICHOLLS, INTERNATIONAL MOVEMENT OF
CHILDREN 369-71(2004). The authors report on one Spanish case in which an Article 20 defense
was successfully invoked because the court understood that a return would end all contact with
the mother and result in a decision based not on the child's best interests but punitive concerns,
but conclude that otherwise, Article 20 is rarely applied worldwide. The United Kingdom and
Finland have never implemented Article 20, attempts to apply it in Canada, Australia, and
Ireland have been unsuccessful, and a statistical analysis conducted by Professor Lowe of applications made under the Hague Abduction Convention in 1999 reported no refusals based on
Article 20. Id at 370. See also PAUL R. BEAUMONT & PETER E. MCELEAVY, THE HAGUE
CONVENTION ON INTERNATIONAL CHILD ABDUCTION 172-76 (1999) (reports on a French case in
which the principles of Article 20 were successfully invoked based on a freedom of movement
argument, but concludes that overall Article 20 has faded without a trace. Id. at 172); Merle
Weiner, Strengthening Article 20, - U.S.F. L. REV. (forthcoming 2004).
76. Three California appellate cases imply that Section 105(c) was raised in the trial court.
In Galante v. Summerfield, No. A100555, 2003 WL 22719322 (Cal. Ct. App. Nov. 14, 2003),
a California appellate court hinted that Section 105(c) had been unsuccessfully raised at the trial
level, but held that the issue of whether "the child custody laws of Zimbabwe violate fundamental principles of human rights" was not before the court, because father had failed to seek
enforcement of the Zimbabwe order that was actually in effect. In Gonzalez v. Gutierrez, No.
D040063, 2003 WL 22236051, n. 5 (Cal. Ct. App. 2003 Sept. 30, 2003), the trial court found
Section 105(c) inapplicable due to evidence that Mexican child custody law violated fundamental principles of human rights, but the case was decided on appeal on other grounds. In In
re Adoption of ChristianA., No. B165754, 2004 WL 729071 (Cal. Ct. App. April 6, 2004), the
adoption by relatives of two children, whose parents had been murdered in their presence in
Guatemala, was contested by other relatives in Guatemala, who contended that they had a
guardianship order from a Guatemalan court. The record suggested that the murders were polit-
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Family Law Quarterly, Volume 38, Number 3, Fall 2004
case in which Section 105(c) appears to have been explicitly raised on
appeal, the appellate court refused to address the issue because it was not
properly raised in the court below." Nevertheless, some of the international cases in which both the UCCJA and the UCCJEA have been
applied suggest contexts in which Section 105(c) might usefully be
employed. The following section argues that when application of the
UCCJEA would create a credible risk to the safety of a child or parent, or
seeks enforcement of an order obtained as a result of that risk, Section 105
(c) should be interpreted to provide a potential remedy.
IV. The Case for a Viable Section 105(c)
The desire to escape domestic abuse or to ensure a safe environment for
their children is a significant factor in the decision of many parents who
bring their children to the United States.78 Although it cannot be claimed
that the legal system in the United States has reached perfection in its ability to provide protection, the significant advances that have been made in
recent decades to respond to the needs of abused spouses and children,79
ically motivated, and a different Guatemalan court had ordered that the children not be returned
to Guatemala for a period of six months to ensure their safety. The California trial court had
refused to recognize or enforce the Guatemalan guardianship order on the grounds that the relatives in the United States had not been given proper notice, and that there was no evidence presented to the California court to indicate that the guardianship proceedings had "addressed any
issue with respect to the children's safety," nor that those issues had even been presented to the
Guatemalan court. The trial court's decision was affirmed on the lack of notice issue, and the
issue regarding failure to address the children's safety was not discussed by the appellate court
as a ground for its decision. In addition, in In re Nada R., 108 Cal. Rptr. 2d 493 (Ct. App. 2001),
discussed infra, Section 105(c) was raised by the mother in the trial court on remand, but the
arguments were directed primarily toward procedural due process defects. Mother's Trial Brief,
at 9-10, July 23, 2001, Case No. DP002824; DP002825, Superior Court of Orange County,
California,
77. In re Y.M.A., 111 S.W.3d 790, 791-92 (Tex. App. 2003) (court enforced Egyptian
decree despite father's argument that an irrebutable presumption under Egyptian law giving
custody of a male child to mother until the age of ten violated the standards of human rights,
finding that father had failed to preserve the error for review because he did not specifically
make the argument below that the basis for his contention was the Texas Equal Rights
Amendment).
78. See Merle H. Weiner, Navigating the Road Between Uniformity and Progress: The Need
for Purposive Analysis of the Hague Convention on the Civil Aspects of InternationalChild
Abduction, 33 COLUM. HUM. RTs. L. REv. 275, 275 (2002) (In seven of the nine U.S. Court of
Appeals cases interpreting the Hague Abduction Convention between July 2000 and January
2001, women abductors alleged they were victims of domestic violence); Cf. REUNITE, The
Outcomes for Children Returned Following an Abduction 20-21 (Sept. 2003), at http://www.
reunite.org/WEBSITEREPORT.doc (five out of eleven abductors interviewed in Europe suggested abuse of a child or parent by the left-behind parent motivated the abduction).
79. See Katherine T. Bartlett, U.S. Custody Law and Trends in the Context of the AL
Principles of the Law of Family Dissolution, 10 VA. J. SoC. POL'Y & L. 5, 26-35 (2002) (summarizing substantive and procedural reforms in U.S. state law benefitting victims of domestic
Scrutinizing the Escape Clause 567
combined with the insulation of geographic separation, offer an important
safeguard to this vulnerable population. Although the legal systems of
many other countries also afford protection, this is not universally true.
When strict adherence to UCCJEA standards in an international context
would create a significant risk of harm to a child or to a parent who seeks
custody rights, it is critical that Section 105(c) not be interpreted so
restrictively as to deny U.S courts the flexibility to circumvent its application. Expansive interpretation in this limited context avoids dilution of
the UCCJEA's standards in domestic cases, and enables the UCCJEA to
work in harmony with the Hague Abduction Convention.
A. A More Expansive View of Section 105(c) to
Accommodate Compelling Circumstances
Though it must be conceded that the boundaries for deviation from the
strictures of the UCCJEA cannot be defined with precision, several cases
illustrate contexts in which Section 105(c) could appropriately be interpreted to provide a viable remedy. Some of these cases involve parents
who have brought children to the United States before any court proceeding was initiated in their home country, while others examine post-decree
enforcement issues.
One such case is In re Nada R.,80 in which a California intermediate
appellate court assessed the exercise of emergency jurisdiction over children
whose custody had been awarded to their father by a Saudi Arabian court.
The mother, a permanent resident of the United States, married the father,
a Saudi Arabian student, in the United States. After the birth of their first
child in California, the family moved to Saudi Arabia, where a second
daughter was born. Domestic violence between the parents prior to their
move had resulted in two arrests of the father and one guilty plea in the
United States, and the mother testified that while in Saudi Arabia the
father had frequently hit her and on one occasion had given their child,
then age five, a loaded gun to hold to her mother's head. Although the
mother testified the father had fallen down stairs carrying one child while
intoxicated, she asserted she had never seen him physically hurt either
child prior to their separation. When the girls were ages six and three, the
mother left Saudi Arabia and moved to California, later testifying she left
the girls with their father because she believed she could not obtain an exit
visa for them from the Saudi Arabian government.
violence and concluding that "[tihe most significant development in custody law in the past five
to ten years is an increasing legal protection for parents and their children from domestic violence." Id. at 26).
80. 108 Cal. Rptr. 2d 493 (Ct. App. 2001).
568
Family Law Quarterly, Volume 38, Number 3, Fall 2004
After her departure, the father obtained a divorce and custody of the
girls from a Saudi Arabian court. The mother was not sent notice of either
decree until after they were obtained. For the next five years, the mother
had contact with the girls through phone calls and several two-week visits with the girls in Dubai, United Arab Emirates, where the father would
bring the girls to meet her. In March 2000, he invited the mother to join
them during a ten-day visit to Orlando, Florida. When an argument ensued
between the parents at the end of the visit and Nada, then age eleven,
sided with her mother, the father became enraged. The child and mother
testified that he punched and clawed the child, and threw her on the bed.
Police, who were called by the mother, observed injuries on Nada and
arrested the father. The mother returned to California with the girls the
next day and sought a restraining order in California courts against the
father. Allegations in her petition alerted the Orange County Social Services
Agency, which took the girls into protective custody, filed a dependency
action, and released the girls into their mother's care. The father challenged
the California court's jurisdiction.
In the course of the investigation, both girls expressed fear of their
father, and stated he drank a lot and drove with them while intoxicated. The
oldest child stated she would kill herself if returned to her father's care,
and subsequently revealed that she had been sexually abused in Saudi Arabia
by two family drivers and a cousin. The father denied these allegations,
and testified he had never before been told of the assaults. Although there
was conflict in the testimony about the extent of the sexual abuse, the trial
court regarded Nada's testimony as reliable and found "by clear and convincing evidence the child [Nada] will be exposed to the risk of serious
physical, emotional harm if released to the father."8 The trial court subsequently ruled the children dependent, exercising temporary emergency
jurisdiction under the UCCJEA.
The appellate court found that the trial court had properly exercised
emergency jurisdiction. While agreeing that under the UCCJEA emergency jurisdiction must be short term and limited, the appellate court held
that "an emergency can exist so long as the reasons underlying the
dependency exist." Because the trial court had determined that returning
the girls to their father would "place them at substantial risk of harm," and
that no subsequent facts suggested that the risk was no longer present, the
appellate court affirmed that the trial court "should be afforded jurisdiction to prevent such harm." 82 The appellate court also determined that the
81. Mother's Trial Brief, July 23, 2001, No. DP002824; DP002825, Superior Court of Orange
County, California, quoting the record of earlier trial court proceedings (RT 500-502).
82. Id. at 500.
Scrutinizing the Escape Clause
569
trial court was required by the UCCJEA to immediately communicate with
the Saudi Arabian court, if it had issued an enforceable custody order, and
remanded the case to determine if proper notice of the original custody
proceeding had been given to the mother.
On remand, the trial court did communicate with the Saudi tribunal and
confirmed that the original custody decree had been entered without
notice to the mother.83 Because the decree did not comport with the standards
of the UCCJEA, the trial court then determined that it was not required to
honor the Saudi Arabian decree, and that jurisdiction with the California
court was appropriate. The girls have remained with their mother.84
So, all's well that ends well, and how does this case illustrate a need for
application of Section 105(c)? First, Saudi Arabia was the girls' home state
at the time the Saudi order was entered. If the mother had been afforded
notice and an opportunity to be heard in the Saudi proceeding, the Saudi
custody order would have been entitled to enforcement. The UCCJEA could
at best have afforded a California court temporary jurisdiction to issue an
order of limited duration under Section 204, and directed the mother to
seek a modification from the Saudi tribunal. Because the father continued
to reside in Saudi Arabia, California would have been prohibited from
modifying the Saudi order by UCCJEA Section 203, unless a Saudi Arabian
tribunal found it no longer had significant connection to the children or
deferred to the California court on forum non conveniens grounds.
Second, even if the original Saudi Arabian order was invalid, the father
could have initiated another custody proceeding within Saudi Arabia
within six months of the girls' departure from Saudi Arabia. Because the
father still resided in Saudi Arabia, it would have been afforded "extended
home state" priority, and after issuing a temporary emergency jurisdiction
order, California would again have been required to defer to the Saudi
Arabian tribunal, under UCCJEA Section 204. In the actual case, the father
did not initiate any further proceedings in the Saudi Arabian court until
the girls had resided in California for a year and a half. Thus, had the facts
been slightly different, the UCCJEA would have left California little
recourse but to direct final resolution of the custody matter back to the
Saudi courts.
83. E-mail from Sheryl Edgar, attorney for the father, to Marianne Blair (June 23, 2003) (on
file with author).
84. One of the mother's attorneys, Cynthia Loo, reports that on remand, the trial court determined that no notice was afforded the mother in the Saudi proceeding. Subsequently, a family
law court took the matter over and she believed that the mother was awarded sole legal and
physical custody. She had spoken with the mother as recently as December 2002, and the mother
and children were doing well. E-mail from Cynthia Loo to Marianne Blair (June 23, 2003) (on
file with author).
570
Family Law Quarterly, Volume 38, Number 3, Fall 2004
Would ultimate resolution of this custody issue by Saudi Arabian courts
have necessarily been an undesirable outcome? After all, the evidence
regarding many of the allegations was in Saudi Arabia. Moreover, the appellate court opinion suggests that the father was refused permission to present
witnesses by telephone, which could have impeded his ability to present his
case in California. Obviously one's response to this question would benefit
from sophisticated expertise in Saudi Arabian custody law and practice,
an expertise this author does not claim to possess. Nevertheless, some
general sources regarding Saudi and Islamic family law suggest cause for
some concern about how this matter might have been resolved.
Saudi Arabian law is based on Islamic Law, Shari'a, but there is a tremendous diversity among Islamic countries and the different schools of Islam
regarding the specific tenets of family law doctrine. The U.S. Department
of State confirms that minor children may not leave Saudi Arabia, even if
they are U.S. citizens, without their father's permission."a In Saudi Arabia's
Shari'a courts there is a maternal preference favoring physical custody of
daughters with their mothers, although the U.S. State Department reports
that this preference exists only until a daughter is seven.86 Saudi courts
generally do not award custody to non-Saudi women. Shari'a courts also
emphasize the best interests of the child, 87 although those interests may be
assessed differently than in an American court. A primary concern of the
Shari'a courts is that a child be raised in the Islamic faith. Even a mother
who is an Arab Muslim will not receive custody unless she is residing in
Saudi Arabia, 88 and if a mother leaves the country, as most non-Saudi
women are forced to do after divorce,8 9 the father is entitled to custody.9 °
85. U.S. Dep't of State, Consular Information Sheet, Saudi Arabia, http:/travel.state.gov/
saudi.html.
86. U.S. Dep't of State, International ParentalChild Abduction, at http://travel.state.gov/
abductionsaudi.html. However, other sources have reported that after a divorce, girls typically
remain with their mothers, usually in the home of their mother's father, until the time of the
daughter's own marriage. Islamic Family Law (ed. Rohit Chopra), at http://els41.law.emory/
edu/ifl/index2.html.
87. Muddassir H. Siddiqui, Conflicting Laws for Children of Mixed Marriages (July 1,
2003), at http://www.intemational-divorce.com/customhtml. 1.
88. U.S. Dep't of State, supra note 86.
89. Siddiqui, supra note 87 (reporting that American women almost invariably leave Saudi
Arabia upon divorce from a Saudi man. Visa limitations preclude non-Saudis from living in the
country without a Saudi sponsor, and upon divorce the wife typically loses her sponsor, her exhusband. In addition, Saudi law does not provide alimony, and job opportunities for women are
very limited. Thus financially it becomes very difficult to stay.)
90. U.S. Dep't of State, supra note 86. See also World Net Daily, American Coerced into
Signing Kids Away, June 19, 2003, at http:/lworldnetdaily.com/news/article.asp? ARTICLE_
ID=33163 (American adult daughter of Saudi father, who took refuge in American consulate
with her two children, was told she would not be permitted to leave Saudi Arabia by Saudi government officials unless she signed papers waiving all rights of custody).
Scrutinizing the Escape Clause
571
In this regard, Saudi Arabia is like many Islamic countries, which prohibit
a custodial mother from moving any substantial distance from the father
without the father's permission. 9 1 Moreover, Saudi women who remarry
non-Muslims (Maria, the mother in Nada, remarried some time after she
had left Saudi Arabia), or reside in the home of nonrelatives, forfeit the
right to custody.92
Had notice been provided to the mother in Nada R., or had the father
initiated another proceeding in Saudi Arabia within six months of the
girls' departure, so that the standards of the UCCJEA provided California
no other alternatives, how might Section 105(c) have been applied to this
scenario? Certainly the norms referenced above, to the extent that they
accurately portray Saudi Arabian custody law, could be specifically challenged on several grounds as violations of fundamental principles of
human rights, as they restrict freedom to marry, protected not only by the
U.S. Constitution,93 but also by international law, 94 and discriminate on
the basis of gender. 95 Even absent those restrictions, however, if examination of the custody regulation of a foreign nation, either facially or in
its application in a particular case, reveals that adjudication in a foreign
forum or enforcement of a foreign order through application of normal
UCCJEA standards would create a significant risk to the safety of a child,
Section 105(c) could justifiably be triggered on the basis that the right of
children to measures of protection is so widely recognized by international
human rights treaties 96 that it indisputably falls within any definition of
91. JAMAL J. NASIR, THE STATUS OF WOMEN UNDER ISLAMIC LAW AND UNDER MODERN
ISLAMIC LEGISLATION 12-29 (1990).
92. U.S. Dep't of State, supra note 86.
93. See Zablocki v. Redhail, 434 U.S. 374 (1978).
94. E.g., International Covenant on Civil and Political Rights, Dec. 19, 1966, S. Exec. Doc.
E, 95-2 (1978), 999 U.N.T.S. 171, art. 23 (The United States ratified this Convention on June
8, 1992. One could attempt to argue that the restrictions on leaving the country violate the freedom to travel. Orders not to take children out of the forum nation are commonly issued in many
countries, however, and arguments that they violate the right to travel have thus far not been
successful in Article 20 cases. See supra note 72.
95. Gender discrimination is, of course, prohibited by the Equal Protection Clause of the
Fifth and Fourteenth Amendments of the United States Constitution, unless substantially related to an important state interest, see, e.g., United States v. Virginia, 518 U.S. 516 (1996); most
U.S. state constitutions; and international law. See, e.g., ICCPR, supra note 94, art. 2 ("Each
State Party to the present Covenant undertakes to respect and to ensure to all individuals within
its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as sex .. ") (Over 140 nations are party to this Convention);
Convention on the Elimination of All Forms of Discrimination against Women, Dec. 18, 1979,
1249 U.N.T.S. 13 (Over 170 nations are parties to this Convention).
96. See, e.g., ICCPR, supra note 94, art. 24 ("Every child shall have.., the right to such
measures of protection as are required by his status as a minor, on the part of his family, society,
and the State"); Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S.3, art. 3
("States Parties undertake to ensure the child such protection and care as is necessary for his or
572
Family Law Quarterly, Volume 38, Number 3, Fall2004
"fundamental principles of human rights" envisioned for Section 105(c).
Another case that illustrates a potential context for application of
Section 105(c) is Gonzalez v. Gutierrez.9 7 Following years of physical,
emotional, and sexual abuse from her husband, Rosa Gutierrez obtained a
divorce in Mexico, pursuant to which she was awarded sole custody of the
children, and her husband received rights of visitation. Although she filed
for a fault-based divorce, she ultimately agreed to a consent divorce,
thinking it would offer more immediate protection. The divorce agreement
contained a ne exeat clause prohibiting her from taking the children out of
the country without the permission of Arce Gonzalez, her former husband.
Unfortunately, the abuse did not end with the separation or the divorce,
despite the attempts of Ms. Gutierrez to gain assistance from local police,
the Red Cross, and the Human Rights Office in Mexico. Ultimately, to
escape the frequent assaults that continued at pick-up times for visitation,
Ms. Gutierrez fled Mexico in February 2001, giving up a rent-free family
home and a job in accounting, in which she has a degree, to move to a
small apartment in San Diego, near her sister, and support herself through
low-paid employment in a plastics factory.9 8 She applied for political asylum for herself and the children on the basis that she was a victim of
domestic violence. Although this is a difficult ground on which to successfully apply for asylum,9 9 the immigration judge found that Ms.
Gutierrez proved that she was persecuted based on her membership in a
particular social group (female Mexican victims of domestic violence)
and that she was unable to obtain protection in her own country, and she
and the children were ultimately granted asylum.'00
Soon after the family's departure from Mexico, Mr. Gonzalez sought a
return order under the Hague Abduction Convention. Ultimately, in August
2002, the Ninth Circuit denied this request, holding that neither ne exeat
clauses nor the doctrine of patriapotestas afford rights of custody to parents
who have only visitation rights under a decree of divorce, and therefore the
removal was not wrongful, as that term is defined in the Convention.' 0 '
her well-being, taking into account the rights and duties of his or her parents, legal guardians,
or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures") [Over 190 nations are parties to this Convention].
97. No. D040063, 2003 WL 22236051 (Cal. Ct. App. Sept. 30, 2003).
98. Appellant's Opening Brief, Gonzalez v. Gutierrez, No. D040063, Cal. Ct. App., at 3,
available on Westlaw at 2003 WL 22236051.
99. See Merle Weiner, StrengtheningArticle 20, supra nn. 75, 85-87 and accompanying text.
100. No. D040063, 2003 WL 22236051, at 4 (Cal. Ct. App. Sept. 30, 2003).
101. Gonzalez v. Gutierrez, 311 F.3d 942 (9th Cir. 2002). The Mexican legal concept of
patriapotestas derives from Roman law conferring power over the family upon the father. In
Whallon v. Lynn, 230 F.3d 450, 456-59 (1st Cir. 2000), it was described as a source for exercise
of authority by both parents, encompassing obligations for the child's protection, guardianship,
and education.
Scrutinizing the Escape Clause
573
While this appeal was pending, Ms. Gutierrez agreed to supervised visitation for Mr. Gonzalez in the U.S., but refused unsupervised visitation
for fear that Mr. Gonzalez would simply take the children back to Mexico,
jeopardizing their asylum application and preventing her from seeing them
without the risk of further abuse. In January 2002, Mr. Gutierrez sought
enforcement of his visitation rights under the UCCJEA in California state
court. Subsequently, Ms. Gonzalez offered visitation conditioned upon an
order that the children could not be removed from the United States, and the
posting of a bond. The trial court ultimately determined, after communication that the Mexican court would not cede jurisdiction to a U.S. court,
and therefore denied Ms. Gutierrez's requested conditions, reasoning that
they would be impermissible modifications.
By the time this decision reached the intermediate appellate court, the
Ninth Circuit had issued its decision denying the Hague Convention return
order, and Ms. Gutierrez had been granted political asylum. Finding that the
court must be mindful of "the importance of delineating the order in such a
way that it does not undermine the grant of asylum and the denial of relief
under the Hague Convention," the appellate court reversed the determination
that the proposed restrictions would constitute an impermissible modification under the UCCJEA, holding instead that the UCCJEA permits enforcing
courts to utilize state enforcement remedies, and that ne exeat orders and
bonds were authorized by California state law. Moreover, the conditions
02
effectuated the Mexican decree's award of sole custody to the mother.'
Again, while the court and the parties ultimately resolved this particular
case without Section 105(c), a slight change in the facts or legal context
could easily have resulted in a different resolution. Had the father been
awarded some form of joint custody, the California appellate court might
have viewed the restrictions it ultimately sanctioned as an impermissible
modification. Moreover, the inability of a mother to obtain supervised visitation enormously magnifies the risk that the children will be taken out of the
U.S. and not returned. Obviously, the circumstances and personalities
involved in each case are different, but the nonmodification provisions of the
UCCJEA significantly reduce the court's discretion to respond to those
perceived risks, when it is deemed appropriate, and to impose needed safeguards. When the UCCJEA cannot otherwise be interpreted to provide
needed protections, Section 105(c) can and should be utilized to protect a
parent who has been the victim of severe domestic abuse.
102. No. D040063, 2003 WL 22236051, at 8 (Cal. Ct. App. Sept. 30, 2003). Although the
case was remanded for further proceedings in the trial court, neither party pursued the matter
further in the lower courts. The mother has retained custody, and the father periodically visits,
with exchanges taking place at a local police station. Telephone interview with Rosa Kasusky,
attorney for Ms. Gutierrez (May 26, 2004).
574
Family Law Quarterly, Volume 38, Number 3, Fall 2004
How can the situation of a parent, such as Ms. Gutierrez, trigger a finding
that the child custody law of the foreign country violates fundamental principles of human rights? After all, Ms. Gutierrez was awarded custody in an
agreed decree. The trial court, in fact, found Section 105(c) inapplicable
because "there was no evidence that the child custody law of Mexico violates
fundamental principles of human rights." ' 3 The trial court's observation,
however, is unduly narrow. When enforcement of a foreign order would
seriously jeopardize the safety of a parent, examination of child custody law
must go beyond the statutory or common law norms to look at the context
in which custody determinations are made. In the case of Ms. Gutierrez,
experience had shown that the legal system of Mexico had been unable to
provide her protection, despite numerous attempts that she had made to
obtain it"° and, in fact, in her case, the threat was so severe that it had been
recognized by another U.S. court as the basis for a grant of asylum. Had the
father chosen to use unsupervised visitation to transport the children back
to Mexico and retain them, Ms. Gutierrez would have been faced with the
untenable choice of returning to a highly dangerous environment or forfeiting custody and contact with her children."15 Such a choice deprives a
parent of the fundamental rights to life, security of person, and freedom from
torture protected in numerous human rights conventions and declarations."
103. Id.at 4, n. 5.
104. While in Ms. Gutierrez's case, her position was supported by the findings in her immigration case, a grant of political asylum is not a necessary prerequisite to establishing the inability of
a foreign nation to provide protection. In addition to the history in the individual case, information
on the general situation of victims of domestic violence in the foreign nation would be relevant. For
example, the U.S. Dep't of State Country Report on Human Rights Practices for Mexico was
utilized by counsel for the mother to demonstrate the inability of the judicial system to provide
sufficient protection. The Appellant's Opening Brief, supra note 98, cites a discussion in the
U.S. Dep't of State Country Reports on Human Rights Practices, released by the Bureau of
Democracy, Human Rights, and Labor, March 4, 2002, available at http://www.state.gov/g/
drl/rls/hrrpt/2001/wha/8320.htm, regarding the difficulties victims face in the Mexican judicial
system and the recent press report that of the 13,822 victims who had sought assistance from the
Mexican Federal District Attorney General's Center on Intra-Family Violence, only 16 cases
had been prosecuted. Case law might also supply a source of information. For example, de los
Reyes v. Melendez, supra note 71, reports the determination of two judges of a Puerto Rican
court that returning a child to Mexico would be intolerable and a violation of fundamental principles of human rights because of Mexico's insufficient response to domestic violence.
105. This dilemma is examined in far greater depth and detail in Professor Weiner's excellent
article, Using Article 20,supra note 71.
106. ICCPR, supra note 94, art. 2 (imposes duty to take measures to give effect to other rights
in Covenant), art.6 (right to life), art. 7 (right not to be subjected to torture or to cruel, inhuman,
or degrading treatment); Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT), Dec. 10, 1984, S.Treaty Doc. No. 100-20, 1465 U.N.T.S. 85,
art. 2 (Each party is required "to take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its jurisdiction"); art. 3 (prohibiting
return of an individual to a nation "where there are substantial grounds for believing that he
would be in danger of being subjected to torture"); Declaration on the Elimination of Violence
Scrutinizing the Escape Clause
575
In Using Article 20,107 found in this issue of Family Law Quarterly,
Professor Merle Weiner provides a thorough and nuanced examination of
both the international instruments and domestic law that underly the
proposition that forcing a victim of domestic violence to choose between
her safety and her children violates "fundamental principles of human
rights." Her analysis is relevant to her own thesis regarding Article 20,
and also supports the use of Section 105(c) to afford protection to parents
as well as children who are victims of domestic violence.
The cases of Tataragasiand Abu-Dalbouh, discussed earlier 1°8 in the
context of the UCCJA, provide further examples of compelling circumstances that might necessitate use of Section 105(c). In both cases, mothers
fled with their children to the U.S. to escape severe spousal and child abuse,
in one instance with the assistance of the U.S. Embassy. In both cases, the
family had been residing in foreign nations for over six months. In such
situations, if the left-behind parents filed proceedings within six months of
the children's departure, strict adherence to UCCJEA standards would
require deference to the foreign courts and enforcement of any temporary
or permanent orders the fathers had obtained. Section 105(c) should be
interpreted in a manner that would permit courts in initial proceedings such
as these to avoid the jurisdictional and enforcement mandates of the UCCJEA if the evidence establishes that the safety of a parent or child would
be seriously jeopardized by application of the custody law of the foreign
nation, or by returning to litigate in the foreign nation, if the legal system
in which the child custody matter was litigated could not provide adequate
protection.
Another UCCJA case, Hosain v. Malik,'09 suggests a different context
in which Section 105(c) might be appropriately considered. When a
Pakistani couple separated and the mother moved to her own father's
home with her young daughter, her husband appeared at the grandparent's
home drunk, threatened the mother's life, and threatened to take the child,
causing the child considerable distress. Within the next several months,
the mother immigrated to the U.S. on a student visa, bringing the child
with her. Shortly thereafter she began living with another man whom she
subsequently married, following the birth of a son. Sometime after the
mother's departure from Pakistan, her first husband commenced divorce
and custody proceedings. The mother received notice and was represented in
the proceedings by counsel and her own father, who presented a written
Against Women, G.A. Res. 48/104, U.N. GAOR, 48th Sess., Supp. No. 49, at 217, U.N. Doc.
A/RES/48/104 (1993).
107. Supra note 71.
108. See supra notes 44-47 and accompanying text.
109. 671 A.2d 988 (Md. Ct. Spec. App. 1996).
576
Family Law Quarterly, Volume 38, Number 3, Fall 2004
statement on her behalf, but the mother was unable to appear. She asserted
that if she had returned to Pakistan to participate in the proceedings, she
would have been arrested for adultery (as she had entered the second relationship and was pregnant by the time of the custody trial). If convicted
under Pakistani criminal law, her penalty could be public whipping or
death by stoning. After the child's father obtained his custody order and
located the mother and child in Maryland, two years later, he sought
enforcement of the order under the UCCJA in a Maryland court. Applying
both the UCCJA and doctrines of comity, the Maryland appellate courts
found that they could deny enforcement for public policy reasons," ° but,
in a divided opinion, decided that Pakistani law was not so repugnant to
Maryland law as to merit such a course. The majority placed little emphasis on the inability of the mother to participate in the Pakistani proceeding, noting testimony that no woman had actually been stoned for adultery
in fifty years.
Though the case presents many complex issues that are beyond the scope
of this article, the choice confronting the mother, i.e., to forfeit custody or
risk public whipping or a death sentence by participating in the custody
trial, merits consideration as a different type of trigger for application of
Section 105(c). The Maryland court clearly underestimated the harsh consequences that would have befallen the mother for returning to litigate. As
recently as 2002, a young rape victim was sentenced to death by stoning
in Pakistan for the "crime" of adultery, and although her conviction was
ultimately overturned in the glare of international attention after both she
and her infant had been incarcerated for many months,"' many more women
are currently in jail for adultery. Offenders as young as age fifteen have
been sentenced to whipping for the crime, and the sentence can be as
much as 100 lashes.12 Using a narrow construction of Section 105(c), one
could argue that the criminal system is not part of the "child custody law"
of the foreign nation. Like the Maryland court, such a construction would
110. See discussion of Malik v. Malik, 638 A.2d 1184 (Md. Ct. Spec. App. 1994), the decision of the appellate court the first time the case went up on appeal to the intermediate appellate court, supra notes 30-32 and accompanying text.
111. See Hannah Block Kohat, Blaming the Victim, Can a Raped Woman Be Stoned for
Adultery, In Pakistan, It's Possible, TIME ASIA, Monday May 20, 2002, at http://www.time.
com/time/asia/magazine/article/0,13673,501020527-238673,00.html; Zafar Abbas, Pakistan
Stoning Sentence Overturned, BBC News, June 6, 2002, available at http://news.bbc.co.uk/l/
hi/world/southasia/2029020.stm.
112. In June 2004, the media reported that many other rape victims were currently in jail in
Pakistan for adultery. The fifteen-year-old was convicted in 1983 of illegal fornication, after filing a complaint against her uncle and his son for rape, which resulted in her pregnancy. The
judge reduced her sentence from 100 lashes to 10 as a result of her young age. Juliette Terzieff,
In Pakistan, Those Who Cry Rape Face Jail,WOMEN'S E-NEWS, June 4, 2004, at http:// www.
womensenews.org/article.cfm/dyn/aid/1 835/context/cover.
Scrutinizing the Escape Clause
577
overlook the reality that such harsh consequences for participation in the
custody proceeding produce an order entered without benefit of one parent's evidence, which in this case would have supported the mother's
accusations of serious substance abuse and threats by the father. A custody decree obtained by such a proceeding violates the fundamental principles of human rights of both the mother, who was effectively denied her
opportunity to present evidence by an inhumane criminal justice system,
and the child, whose welfare could not be accurately assessed as a result
3
of that system."
B. Undermining Domestic Uniformity
When Section 105(c) is not utilized to provide a viable remedy in compelling circumstances, trial and appellate courts are then pressured to
"creatively" interpret the UCCJEA in order to accomplish a result they
deem just. Nada R.114 provides an excellent example of this phenomena.
At the time that it rendered its opinion in Nada R., the appellate court
did not have an adequate record to determine whether the mother had
received notice in the original Saudi Arabian proceeding. The appellate
court therefore tried to ensure protection for the children by ruling that
emergency jurisdiction could exist as long as the reasons underlying the
dependency existed. As long as the risk was present, the court held, the
trial court was afforded jurisdiction to prevent such harm. 5 This novel
construction is not consistent with UCCJEA Section 204(c), which
requires that when a previous custody determination has been made and
is entitled to enforcement under the Act, the temporary order of jurisdiction may be effective only for such period as is necessary for a proceeding to be commenced in the forum that issued the prior order. The temporary order must by its own terms contain a date for its expiration, and must
expire automatically on that date even if no other proceeding has been
commenced. Section 204 does not provide a basis for long-term modification, which was the implication of Nada R.
Following Nada R., litigants in both domestic and international proceedings attempted to rely upon its generous definition of emergency
jurisdiction. California appellate courts were then forced to backpedal. A
113. The argument presented here is not that every custody adjudication made in the absence
of a parent who has been charged with a crime is therefore suspect. The heinous nature of the
punishment, in reference to the nature of the crime, justifiably distinguish the punishment faced
by the mother in Hosain from the typical criminal sanctions for child abduction that are commonly at issue in many international custody cases.
114. See discussion of Nada R., 108 Cal. Rptr. 2d 493 (Ct. App. 2001), notes 80-94 and
accompanying text.
115. Id. at 8.
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Family Law Quarterly, Volume 38, Number 3, Fall2004
year later in In re C.T., 6 when another litigant alleging sexual abuse of
her children in Arkansas argued that Nada R. permitted California to
assert modification jurisdiction on an emergency basis for an indefinite
period of time, the same appellate court was forced to distinguish Nada R.
by asserting that in Nada the court properly assumed jurisdiction because
"there was no evidence a Saudi Arabian court would address the problems
disclosed by the children.""' 7 The court in C.T. virtually conceded that it
had created an exception to the UCCJEA that did not, in fact, exist and
held that California could not assume emergency jurisdiction to attain
modification jurisdiction for an indefinite period of time.'1 8 Similarly,
when a trial court entered temporary emergency jurisdiction in Galante v.
Summerfield"9 to stay enforcement of a custody order from Zimbabwe,
based on alleged abuse (which the appellate court found unsubstantiated) and
political uprisings in Zimbabwe, another California appellate court found
emergency jurisdiction must be of limited duration, again distinguishing
Nada R. with a finding that the Zimbabwe court was in a position to
decide if the children were at risk upon their return.
Erroneous constructions of the UCCJEA in international cases run the
risk of creating precedent that could undermine the uniform application of
the Act in domestic cases. Rather than dismantle a carefully constructed
system designed to regulate interstate custody enforcement among states
with relatively similar legal systems and cultural expectations, in order to
address international adjudications by foreign nations with markedly dissimilar legal, cultural, and/or social systems, it makes more sense to vitalize
Section 105(c) so that it can respond to compelling circumstances when
necessary.
C. Consistency with the Hague Abduction Convention
The UCCJEA was drafted to work harmoniously with the Hague
Abduction Convention. 2 ° A viable Section 105(c) is necessary to achieve
that goal.
The absence of a viable Section 105(c) threatens to undermine the carefully constructed balance created by the Hague Abduction Convention,
116. 121 Cal. Rptr. 2d 897, 908-09 (Ct. App. 2002).
117. Id. at 908.
118. Id. In C.T., by contrast, an Arkansas court was willing to address the allegations of sexual abuse and would recognize the temporary order placing the child with the mother pending
resolution of the Arkansas proceedings.
119. No. A100555, 2003 WL 22719322, at 9 (Cal. Ct. App. Nov. 14, 2003).
120. Section 302 of the UCCJEA specifically provides that states may use the Act's enforcement remedies to enforce return orders made under the Convention. UCCJEA, supra note 62,
at 690, § 302, 9 Part IA U.L.A. at 690.
Scrutinizing the Escape Clause
579
which mandates certain prerequisites for entitlement to a return order, and
creates some narrow defenses, as described above in Part I.A. "' The Article
13(b) defense, grave risk of harm to the child, is particularly relevant to
many of the contexts for application of Section 105(c) that we have been
examining. The First Circuit has recently held that a history of domestic
violence toward a parent and other siblings, and an abuser's pattern of
ignoring domestic protection orders, constituted grounds under Article
13(b) for refusal to return a child to Ireland.' 22 In another case, U.S. courts
determined that return could be refused on the basis of Article 13(b) when
there was significant evidence of sexual abuse by one parent that was not
adequately addressed by governmental authorities in Sweden, prior to the
children's removal from Sweden by the other parent.'23 "Grave risk of harm"
is not easily established in U.S. courts. Article 13(b) has been interpreted
restrictively, as "serious risk" is deemed insufficient, and the defense may
be utilized only when there is clear and convincing evidence that there is
grave risk that return would expose the child to physical or emotional
harm or otherwise place the child in an intolerable situation. Thus, the
defense is successfully asserted only in compelling circumstances.
Absent a viable Section 105(c), the UCCJEA creates the opportunity
for a parent left behind in a foreign nation to get a second bite at the apple,
even if his or her Hague request for return is denied on the basis of an
Article 13(b) defense. Suppose that the left-behind parent has obtained a
custody order in the home nation, either in a proceeding prior to a child's
removal or in a proceeding filed within six months of the child's removal
from the home country. Even if return is refused in a Hague Abduction
Convention proceeding, the left-behind parent can seek enforcement of
his or her foreign custody order under the UCCJEA. 21 4 Grave risk of harm
is not a defense to enforcement of an order under the UCCJEA. Though
resjudicatamight in some instances potentially block subsequent assertions
of the UCCJEA, successful assertion of that defense will depend on the
121. See supra notes 5-13 and accompanying text.
122. Walsh v. Walsh, 221 F.3d 204 (1st Cir. 2000).
123. Danaipour v. McLarey, 286 F.3d I (1st Cir. 2002).
124. This reality has already been recognized by litigants and courts. In Gonzalez v.
Gutierrez, counsel for the father repeatedly told Ms. Gutierrez that even if she was successful
in defending against the father's petition for return under the Hague Abduction Convention, it
would be irrelevant because the father "would then simply file another action in family court
pursuant to the UCCJEA and win." Appellant's Opening Brief, supra note 98, at 6. In Galante
v. Summerfield, No. A100555, 2003 WL 22719322, at 8 (Cal. Ct. App. Nov. 14, 2003), an
unusual case in which mother attempted to assert Hague Abduction Convention defenses in a
UCCJEA proceeding even though father had brought no previous Hague proceeding, the court
observed that "An order of the California court enforcing.. .[the Zimbabwe] order is unaffected
by the Hague Convention."
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Family Law Quarterly, Volume 38, Number 3, Fall 2004
claim preclusion doctrine of the state and the procedural posture of the
two proceedings.1 25 When a U.S. court in a Hague proceeding has determined that a child would be at grave risk of harm if returned to a foreign
nation, Section 105(c) could appropriately be invoked to avert a return
otherwise compelled by the UCCJEA, for the reason that such return
would violate the child's fundamental right to protection.' 26
The linkage between Section 105(c) and Article 20 of the Hague
Abduction Convention may provide further support for utilizing Section
105(c) in those cases in which application of UCCJEA standards would
otherwise force a victim of domestic violence to choose between sacrificing her chance to maintain a relationship with her children and jeopardizing her life or physical safety by returning to the nation in which her abuser resides. Recent research by Professor Merle Weiner into the legislative
history of Article 20 suggests that its narrow construction in the
Reporter's notes and subsequently by courts and the U.S. Department of
State has been unwarranted. 27 She argues convincingly in Using Article
20, (see page 583) that courts should permit Article 20 to be effectively
employed to deny return orders in such cases. 2 8 Section 105(c), which
also invokes protection of fundamental principles of human rights as its
underlying rationale, should be interpreted to similarly provide protection
under such circumstances.
Further insight into the appropriate interaction between the Hague
Abduction Convention and Section 105(c) might be gained from examining
the "escape" clause of the 1996 Hague Protection Convention, 129 the convention drafted by the Hague Conference to regulate custody jurisdiction
and enforcement issues in a manner that would be consistent with its
Abduction Convention. Article 23 of the 1996 Hague Protection
Convention provides that recognition to another nation's order may be
refused if "such recognition is manifestly contrary to public policy of the
requested state, taking into account the best interests of the child... ." The
New Jersey Supreme Court, recognizing the tie between the two conventions, cited Article 23 in support of its conclusion that in the appropriate
125. In Gonzalez v. Gutierrez, No. D040063, 2003 WL 22236051 (Cal. Ct. App. Sept. 30,
2003), the California intermediate appellate court rejected Ms. Gutierrez's claim preclusion
defense, finding that the father's Hague Convention proceeding sought return of his children, to
redress the primary right to prevent them from leaving Mexico, whereas the UCCJEA proceeding
sought enforcement of visitation, which addressed a different primary right. Cf. Holder v.
Holder, 305 F.3d 854 (9th Cir. 2002) (Hague Convention proceeding is not precluded by earlier
state court custody proceeding).
126. See supra note 96 and accompanying text.
127. Weiner, Strengthening Article 20, supra note 75.
128. Weiner, Using Article 20, supra note 71.
129. Supra note 25.
Scrutinizing the Escape Clause
581
'
case, enforcement of a foreign order could be denied under the UCCJA. 30
The 1996 Hague Protection Convention thus recognizes that compelling
circumstances threatening the safety of a child or parent can justifiably
support denial of enforcement while remaining faithful to the overall
scheme for implementation of the Hague Abduction Convention.
V. Conclusion
In most international custody disputes, Section 105(c) was not intended to provide a broad exception to the rigorous standards of the UCCJEA.
When the safety of a child or parent would be jeopardized by deferral of
jurisdiction to a foreign tribunal or enforcement of a foreign order, however, or when, as in Hosain, a parent has been effectively prevented from
participating in the foreign proceeding by the threat of severe injury,
Section 105(c) should be interpreted to circumvent application of the
UCCJEA's stringent jurisdictional and enforcement provisions.
Applying Section 105(c) to provide U.S. courts with this necessary discretion to protect children and their parents is consistent with the recognition of courts previously applying the doctrine of comity and the
UCCJA that such compelling circumstances justify exceptions to deferral,
recognition, and enforcement in international custody disputes. A viable
interpretation of Section 105 also harmonizes application of the UCCJEA
and the Hague Abduction Convention, and avoids use of the UCCJEA to
undercut protections afforded in that treaty. U.S. courts should not be
forced to misapply the jurisdictional and enforcement standards of the
UCCJEA in order to provide protection and justice, thereby undermining
domestic application of the Act. Instead, Section 105(c) should appropriately be utilized on behalf of victims of child and domestic abuse in compelling circumstances, to ensure that the UCCJEA does not otherwise
operate to impair their fundamental rights to safety and protection.
130. Ivaldi v. Ivaldi, 685 A.2d 1319, 1327-28 (N.J. 1996).